Abstract

Recent native title litigation in Australia, over the important Noongar claim to areas in the south west of the country, highlight some persistent difficulties and troubling trends in Australian native title law. The Federal Court trial and appeal decisions (of 2006 and 2008 respectively) provide telling confirmation that the Australian approach to proof of native title entitlement is a mix of foundational ambiguity, theoretical complexity, moral controversy and practical uncertainty. This article traces the development of the relevant principles in Australian law, up to and including the dissonant Noongar decisions, and advances some potential doctrinal clarifications. It also seeks to underline the risk that prolonged litigation in this field can be an expensive and unhelpful distraction from meaningful progress.